“We are of the prima facie view that the impugned Government Resolution dated 08.05.2020 is without jurisdiction”, the Court said on Friday
The Bombay High Court on Friday stayed the Maharashtra Government’s directive barring an increase or hike in school fees this year (academic year 2020-21) in view of the COVID-19 pandemic and lockdown (Association of Indian School and ors v. State of Maharashtra and others).
A May 8 resolution issued to this effect was challenged by private unaided and private unaided minority schools in the State of Maharashtra affiliated to different Education Boards.
The resolution had been passed by the Government invoking Section 21 of the Maharashtra Educational Institutions (Regulation of Fee) Act, 2011 and Section 26 (i) and (l) of the Disaster Management Act, 2005.
In the pleas assailing the move, however, it was contended before the Bombay High Court that the school management’s decisions on the fee structure was binding as per Section 6 of the 2011 Act, and that the State Government has not been conferred any power to tamper with this fee structure.
The Bench of Justices Riyaz I Chagla and Ujjal Bhuyan on Friday found prima facie merit in these submissions, observing that,
“Prima facie having regard to the scheme of section 6, we are of the view that section 21 could not have been invoked by the State Government to have issued the impugned Government Resolution.”
The Court added that it could not find any provision enabling the Government to issue the May 8 resolution in the Epidemic Diseases Act, 1897, the Epidemic Diseases (Amendment) Ordinance, 2020 or the Disaster Management Act, 2005 either.
In the absence of such statutory powers, the Bench also noted that courts have laid down that the State cannot issue such resolutions touching upon the question of regulating school fees in private institutions under Article 162 of the Constitution.
In this regard, the Court referred to the Supreme Court ruling in the case of TMA Pai Foundation v. State of Karnataka and the Bombay High Court ruling in Association of International Schools Vs. State of Maharashtra.“That being the position, we are of the prima facie view that the impugned Government Resolution dated 08.05.2020 is without jurisdiction.”the Court said.
As such, the Court has now stayed the May 8 State Government Resolution and all allied communications made subsequently. The Court, however, added that the schools may consider allowed the payment of school fees in instalments in view of difficulties that may be faced by parents in these testing times.
“… we are also mindful of the difficulties faced by the parents in these testing times. Therefore we feel that management of the private unaided schools may consider providing option to the students / parents to pay the fee in such instalments as is considered reasonable and also to allow them the option to pay the fee online”, the order states.
The matter has been posted to be taken up next on August 11